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2023 DIGILAW 280 (KER)

USHA v. PARAMESWARAN VS STATE OF KERALA

2023-03-17

SATHISH NINAN

body2023
JUDGMENT : SATHISH NINAN, J. 1. The petitioners are aspirants to the posts of Assistant Professors in the second respondent University. In this writ petition, they challenge the constitutional validity of Section 45A of the Kerala University of Fisheries and Ocean Studies Act, 2010 (hereinafter, referred to as the KUFOS Act) in so far as it relates to the prescription of qualification for teaching posts, and also the notification issued by the University for filling up of teaching posts with such prescription. 2. I have heard Sri. P. Ravindran, the learned Senior Counsel on behalf of the petitioners, the learned Government Pleader for respondents 1, 2 and 3, Sri. T.C. Krishna, the learned counsel for the 4th respondent, Sri. James Abraham (Vilayakattu), the learned C.R. counsel for additional respondents 5 to 15, Sri. Isaac Kuruvilla Illikal, the learned counsel for additional respondent No. 16 and Sri. Jaju Babu, the learned Senior Counsel for the University. 3. KUFOS Act, 2010 was amended by Act 18 of 2021 incorporating Section 45A. The writ petition was filed prior to the passing of the Act and when the amendment ordinance was promulgated. 4. Pending the writ petition, the Act came into force, and consequential amendments were made in the writ petition. 5. Section 45A of the KUFOS Act reads thus: “45A. University Teachers: (1) Each Faculty shall have teachers in the categories of Professor, Associate Professor and Assistant Professor distinctly: Provided that a teacher from one faculty may be allowed to teach in another faculty as required. (2) Of the teaching posts of the Faculty of Fisheries transferred from the University of Agriculture, the departments except Fisheries Engineering, Management and Fisheries Hydrography shall be retained in the faculty of Fisheries of this University. (3) The appointment, powers and duties of the teaching posts shall be as prescribed by the statutes. But the teachers in the Fisheries Faculty shall have degree in Fisheries Science approved by the Indian Council of Agricultural Research, postgraduate degree in the Fisheries subject concerned and other qualifications as mandated by the Indian Council of Agricultural Research: Provided that the degree in Fisheries Science is not mandatory for those who are continuing, as on the date of commencement of the Kerala University of Fisheries and Ocean Studies (Amendment) Act, 2021, in the teaching post in the Faculty of Fisheries in the University. (4) Teacher shall be responsible to the Head of the Department for the activities of the teaching, research and extension programs entrusted to him.” Sub-Section (3) thereof contains the prescription of qualification, which is under challenge in this writ petition. As per sub-section (3), the teachers in the fisheries faculty shall have degree in Fisheries Science approved by the Indian Council of Agricultural Research, Postgraduate degree in the Fisheries subject concerned and other qualifications as mandated by the Indian Council of Agricultural Research. Challenge against the said prescription of qualification is on two grounds: (i) The qualification prescribed is repugnant to the qualification prescribed under the University Grants Commission (for short UGC) regulations. (ii) The qualification prescribed is irrational and unreasonable.” 6. Ext.P1 is the “UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018.” That the second respondent University is bound by Ext.P1 UGC Regulations, is not in dispute. 7. Regulation 4.1 - I (A)(i) of Ext.P1 prescribes the qualification for Assistant Professor. The said regulation reads thus: “A Master's degree with 55% marks (or an equivalent grade in a point-scale wherever the grading system is followed) in a concerned/relevant/allied subject from an Indian University, or an equivalent degree from an accredited foreign university.” Sri. P. Ravindran, the learned Senior Counsel for the petitioners contend that, in terms of Ext.P1 Regulations, the qualification required for an Assistant Professor is only “a master's degree with 55% marks in a concerned/relevant/allied subject from an Indian University” whereas Section 45A of the KUFOS Act prescribes a qualification different/at variance therefrom. Referring to various judgments of the Apex Court the learned senior counsel submitted that, UGC regulations prevail over the State enactment in case of any conflict and that prescription of qualification in Section 45A of the KUFOS Act by the amendment Act being in conflict with Ext. P1 Regulations, is liable to be struck down. 8. The KUFOS Act came into force with effect from 20.11.2010. It is an enactment of the State legislature. Entry 25 in List III to the VIIth Schedule of the Constitution, and entry 14 and 21 in List II, empowers the State to enact the KUFOS Act. The UGC Act is a parliamentary legislation enacted tracing power to entry 66 in List I to the VIIth Schedule. It is an enactment of the State legislature. Entry 25 in List III to the VIIth Schedule of the Constitution, and entry 14 and 21 in List II, empowers the State to enact the KUFOS Act. The UGC Act is a parliamentary legislation enacted tracing power to entry 66 in List I to the VIIth Schedule. Section 26 of the UGC Act enables the Commission to make regulations regarding the qualifications for appointment of teaching staff. It is by virtue thereof that Ext.P1 regulations have been made. The Apex Court has repeatedly held that, the Regulations made by the UGC under Section 26 of the UGC Act are legislations for the purpose of UGC Act and that, in case of any repugnancy with any State legislation, the UGC Regulations will prevail. [See: Gambhirdhan K. Gadhvi vs. State of Gujarat and Others, 2022 (5) SCC 179 , State of West Bengal vs. Anindhya Sundar Das, 2022 SCC Online SC 1382, Professor Sreejith P.S. vs. Dr. Rajasree M.S. 2022 SCC Online SC 1473, Dr. K.K. Vijayan vs. Chancellor, KUFOS, 2022 (6) KLT 787 , Annamalai University Represented by Registrar vs. Secretary to Government Information and Tourism Department and Others, 2009 (4) SCC 590 , Prof. Yashpal and Another vs. State of Chhattisgarh, 2005 (5) SCC 420]. Therefore, if there is any repugnancy between the qualifications prescribed under Ext.P1 UGC Regulation and Section 45A of the KUFOS Act, the former will prevail. 9. The respondents have no quarrel with the proposition as above. Their contention is that, Ext.P1 UGC Regulation lays down only the “minimum qualification” for appointment of teachers, meaning thereby that, the qualification prescribed by the University shall not be lower than the one mandated by the UGC. Prescription of qualifications in addition to the minimum qualification fixed by the UGC does not amount to violation of the UGC Regulations. They relied on the judgments of the Court in Dr. P. Bonny Natesh vs. State of Kerala and Others in Civil Appeal No. 2604/2016 and Dr. Rajitha L. vs. Regional Cancer Centre, 2016 SCC Online 6285 to support their contentions. 10. The UGC has been established for the determination of standard of Universities, promotion, and co-ordination of University education, for the determination and maintenance of standards of teaching, examination and research in Universities, for defining the qualifications regarding the teaching staff of the University, maintenance of standards etc. 10. The UGC has been established for the determination of standard of Universities, promotion, and co-ordination of University education, for the determination and maintenance of standards of teaching, examination and research in Universities, for defining the qualifications regarding the teaching staff of the University, maintenance of standards etc. [See: Kalyani Mathivanan vs. K.V. Jeyaraj, 2015 (6) SCC 363 ]. Regulations prescribing minimum qualifications for teachers is to enhance the standard of education. As noticed supra, the power of the State Government to legislate on the subject cannot be disputed. The only restriction is that, the State law shall not be repugnant to the legislations made by the parliament. 11. The judgment of a Division Bench of this Court in OP(KAT) Nos. 10 and 33 of 2015 related to a similar issue that occurred in the medical education service. Therein, the Medical Council of India in exercise of the powers under the Indian Medical Council Act prescribed certain minimum qualifications for appointment as a teacher in various departments of medical colleges. The State Government prescribed a higher qualification. This Court held the prescription to be valid. The Division Bench referred to the judgment of the Apex Court in Dr. Preeti Srivastava and Others vs. State of Madhya Pradesh and Others, (1999) 7 SCC 120 , Biju vs. University of Kerala, 2008 (1) KLT 707 and held that the State has power to prescribe a higher qualification for appointment. The relevant observations reads thus: “.......the State has every power to prescribe a higher qualification for appointments than the one prescribed by an authority under a Central statute and held that the regulations of the UGC fixes the benchmark qualification, but if the university or the State Government feels that in the colleges under them, a higher qualification should be prescribed, the same will not amount to a legislation or a subordinate legislation, repugnant to the UGC Act or the regulations framed thereunder. It was further held that if some qualification more is prescribed, it cannot be taken as contrary but only as complementary or supplementary to the prescription already made by the Council.....” The said judgment was upheld by the Apex Court in Dr. Bonny P. Natesh (supra). It was further held that if some qualification more is prescribed, it cannot be taken as contrary but only as complementary or supplementary to the prescription already made by the Council.....” The said judgment was upheld by the Apex Court in Dr. Bonny P. Natesh (supra). The Apex Court held thus: “Taking note of the minimum qualifications for teachers prescribed by the Regulations, 1998 and the qualifications and method of appointment to the teaching faculties prescribed by the State of Kerala, it clearly manifests that the Medical Council of India has prescribed the minimum qualification for appointment of medical teachers and the State of Kerala has laid down a higher benchmark in prescribing the academic qualification for appointment/promotion to the post of Associate Professor/Professor which, in our opinion, is in conformity with scheme of regulations, 1998 and that is always permissible under the law.” 12. In State of Tamil Nadu vs. S.V. Bratheep, 2004 (4) SCC 513 , the Apex Court, while considering the prescription of a higher qualification by the State Government for admission to the Engineering Colleges than that was prescribed by the AICTE held that such prescription is not contrary to the regulations of the AICTE but is only complementary or supplementary to it. The same view was followed by this Court in Dr. Rajitha L. vs. Regional Cancer Centre, 2016 SCC Online 6285, wherein this Court held that prescription of a higher qualification does not amount to deviation from the essential qualification prescribed. 13. At this stage it would be relevant to note the differences between the BFSc degree and the BSc degree, and also the MFSc degree and MSc degree. BFSc degree is a four year bachelors degree course whereas BSc degree is only a three year degree course. Only a BFSc graduate is eligible for admission to the MFSc programme. So also, BFSc is a professional programme unlike BSc. Respondents 2 and 3 along with their counter affidavit has placed on record Ext.R2(b), a notification by the UGC detailing the degrees specified by the UGC under Section 22 of the UGC Act. Therein, BSc and BFSc are notified as separate degrees; similar is with regard to MFSc and MSc. Therefore, unlike an MSc graduate, an MFSc graduate would have undergone six years of fisheries education. Therein, BSc and BFSc are notified as separate degrees; similar is with regard to MFSc and MSc. Therefore, unlike an MSc graduate, an MFSc graduate would have undergone six years of fisheries education. From Ext.P10 employment notification issued by the second respondent University, it is evident that the qualification of BFSc is insisted only for the faculty of Fisheries Science. Since knowledge is to be imparted to the students of BFSc course, State deemed it appropriate that the teachers who impart knowledge should possess the degree in Fisheries Science and Post Graduate degree in the fisheries subject concerned. It can only be understood to be the prescription of a higher qualification to uplift the quality of education. It does not do away with the minimum qualification of “Masters Degree” as prescribed under Ext.P1 UGC regulations. Therefore, the challenge against the provision on the ground of repugnancy, fails. 14. Though the petitioners would contend that BFSc degree is equivalent to BSc degree, and MFSc degree is equivalent to MSc degree, the second respondent University has not treated the degrees as equivalent. The UGC, as evidenced by Ext.R2(a) public notice, has declared that equivalence of degrees are not determined by the UGC but by the University concerned. Though the petitioners allege that KUFOS is the only University which provide BFSc and MFSc courses and that the incorporation of Section 45A is a ruse to avoid grant of employment to those who secure degree from other Universities, the same is denied by the University. It is sworn to in the counter affidavit that there are several fisheries colleges in other states of India imparting such courses. 15. Now I proceed to the second ground of challenge urged. Section 45A of the KUFOS Act mandates a degree in Fishery Science which is approved by the Indian Council of Agricultural Research (for short, ICAR). The ICAR has issued Ext.P7 public notice declaring that it does not provide approval of any course. Therefore, compliance with the requirement under Section 45A that, the degree in Fisheries Science must be approved by the ICAR is irrational, unreasonable and is an impossibility. The provision is thus liable to be struck down on the said ground, is the contention. The ICAR has issued Ext.P7 public notice declaring that it does not provide approval of any course. Therefore, compliance with the requirement under Section 45A that, the degree in Fisheries Science must be approved by the ICAR is irrational, unreasonable and is an impossibility. The provision is thus liable to be struck down on the said ground, is the contention. The learned Senior Counsel Sri.P.Ravindran, rely on the judgment of the Apex Court in E.P. Royappa vs. State of Tamil Nadu, 1974 (4) SCC 3 , Justice K.S. Puttuswamy (Retd.) vs. Union of India, 2017 (10) SCC 1 , Shayara Banu vs. Union of India, 2017 (10) SCC 1 to contend that, an unreasonable and arbitrary legislation is liable to be struck down. 16. ICAR, in Ext.P7 public notice, has made the following clarification. They are being extracted as stated in Ext.P7: “(i) Because of its non-statutory status, ICAR does not give “Recognition” or “Affiliation” to any university/institution/organization or any course/programme/degree offered by such institution. The ICAR provides only ‘Accreditation’ to university/institution/organization or faculty/college/school of agriculture of the institution or any course/programme/degree offered by such institution in agriculture and allied subject for quality assurance in higher agricultural education once first batch students of programme are passed out from the university/institution/college. (ii) ICAR does not give approval for permission to open/start/close of college/institution/University to offer programmes in agricultural science in a particular State as the agriculture and agriculture education are State subjects (Entry 14 under List II). However, it is required that all the institutions offering academic programmes in agricultural science to comply with the minimum requirements and academic regulations prescribed by ICAR to achieve uniformity and wider acceptability of the programmes throughout the country. (iii) Accreditation is a self-regulation and peer review process to improve and sustain the quality and relevance of higher education. It is a recurring process and intends for improving marketability of students nationally and internationally. ICAR accreditation is a voluntary process and an institution/programme can be accredited by more than one agency.” Section 45A of the KUFOS Act requires the degree to be approved by the ICAR. Ext.P7 public notice does not mention that the Council does not approve any degree granted by Universities. ICAR accreditation is a voluntary process and an institution/programme can be accredited by more than one agency.” Section 45A of the KUFOS Act requires the degree to be approved by the ICAR. Ext.P7 public notice does not mention that the Council does not approve any degree granted by Universities. It only says that it does not give “recognition” and “affiliation” to any University or any course offered by the University, and also that it does not give “approval or permission to University to offer programmes in agricultural science.” This is further evident from Ext.R5(a) and (b) communications issued by the ICAR. Therein, it is said that the Council has approved UG degrees in agriculture and allied subjects as professional degree courses. Ext.R5(c) is a copy of the relevant pages of the handbook of Vice Chancellors published by the UGC wherein the ICAR has been mentioned as a regulatory council. Suffice to notice that, the contention of the petitioners that securing of “Degree in Fisheries Science approved by the Indian Council of Agricultural Research” is an impossibility, cannot be acceded to. Therefore, the said ground of challenge also fails. 17. On the discussions as above, the ground of challenge urged against Section 45A of the KUFOS Act (Ext. P9) and Ext.P10 employment notification fails. 18. Resultantly, the writ petition is dismissed.